Democratic Party moves to impeach Chief Justice Jo — what are the standards and procedures?

As the Democratic Party of Korea formally opens discussions on impeaching Chief Justice Jo Hee-dae, attention is turning to the Constitutional Court's standards and procedures for impeachment trials.

Democratic Party leader Kim Min-seok said Friday on a YouTube broadcast that the party had "begun discussing all possible methods and avenues" regarding the impeachment of Chief Justice Jo.

Through parliamentary audits, the Democratic Party has argued that Jo must be held accountable for refusing to resubmit Supreme Court justice nominees at the request of Cheong Wa Dae — causing a prolonged vacancy on the bench — as well as for purchasing wine with official expense funds and making regular bonus payments to Supreme Court justices.

In practice, if the ruling party moves to impeach Chief Justice Jo, at least one-third of all sitting Assembly members must introduce the impeachment motion, and a majority must vote in favor.

Unlike a presidential impeachment — which requires a majority to introduce the motion and a two-thirds supermajority to pass it — an impeachment motion against the chief justice can clear the National Assembly on the ruling party's seats alone.

If the impeachment motion passes a plenary session of the National Assembly, Chief Justice Jo's authority would be suspended until the Constitutional Court concludes its trial.

The impeachment process begins when the chairperson of the National Assembly's Legislation and Judiciary Committee submits the impeachment resolution to the Constitutional Court in the capacity of prosecutor.

Upon receiving the resolution, the Constitutional Court designates a presiding justice and begins deliberations on the impeachment case.

The trial is handled by the full bench, with all nine justices participating.

The full bench exchanges views on the case and discusses the hearing schedule in closed deliberations.

Impeachment trial procedures follow the Code of Criminal Procedure by analogy.

Oral argument sessions are open to the public. The parties and the prosecutor are summoned to appear, but if the respondent fails to appear on two or more occasions, the court may proceed without their presence.

The Constitutional Court must issue a ruling — either granting or dismissing the impeachment — within 180 days of receiving the case.

If six or more of the nine justices find the impeachment petition to be valid, the official is removed from office; if the grounds are not recognized, the petition is dismissed.

The standard the Constitutional Court applies in deciding whether to remove an official is "the respondent's violation of the Constitution or law, and the gravity of that violation."

The court weighs the impact of the violation on the constitutional order and the benefit to constitutional protection that removal would bring.

The court first articulated this standard in the 2004 impeachment trial of former President Roh Moo-hyun, holding that "a grave violation of the Constitution or law sufficient to justify removal from office" must be established before an impeachment motion can be upheld.

At the time, the court found that Roh's remarks at a press conference expressing support for the Uri Party constituted a breach of the political neutrality obligation under the Public Official Election Act, but dismissed the impeachment motion, ruling that "no active intent to subvert the constitutional order can be recognized, and the conduct cannot be assessed as a threat to the fundamental order of liberal democracy."

By contrast, in the impeachment trials of former President Park Geun-hye in 2017 and former President Yoon Suk Yeol last year, the court found grave violations of the Constitution and law — including facilitating Choi Soon-sil's pursuit of private gain and the declaration of emergency martial law — and ordered their removal from office.

Former Korean National Police Agency Commissioner General Jo Ji-ho was also removed after the court found that his actions during the emergency martial law period — restricting access to the National Assembly and deploying police to the National Election Commission — constituted grave violations of representative democracy and the separation of powers.

In contrast, impeachment petitions against former Interior and Safety Minister Lee Sang-min, former Korea Communications Commission Chairperson Lee Jin-suk and former Board of Audit and Inspection head Choe Jae-hae were all dismissed after the court found either no legal violation or insufficient gravity.

In judicial impeachment cases, the trustworthiness of judicial independence and impartiality has also been cited as a factor in the court's assessment.

The 2021 impeachment trial of former Senior Judge Lim Sung-geun was dismissed on the grounds that his term had expired during the proceedings, making removal impossible.

However, three justices who voted to uphold the impeachment noted that "damage to trust in judicial independence and impartiality can cause serious impediments to judicial functions, and when the degree is significant, it constitutes a grave violation of law."

Constitutional law experts say that if an impeachment motion is actually filed, the court must separately examine whether the alleged conduct by Chief Justice Jo is unconstitutional or unlawful, and whether it rises to the level of gravity needed to justify removal.

Some have also raised concern about the impact that what would be the first-ever impeachment of a chief justice in constitutional history could have on judicial independence, as well as the disruption to ongoing trials that a suspension of duties would cause.

However, some observers note that given the political circumstances, the likelihood of the Democratic Party actually filing an impeachment motion remains low.

The People Power Party has sharply criticized the move as an attempt to pressure the judiciary into halting trials related to President Lee Jae Myung. PPP chief spokesperson Park Sung-hoon warned that if the ruling party were to actually introduce an impeachment motion in defiance of the constitutional principle of separation of powers, "it would be the opening shot signaling the downfall of the Lee Jae Myung administration."